Citation Nr: 0915541
Decision Date: 04/24/09 Archive Date: 04/29/09
DOCKET NO. 07-34 766A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical Center in Tampa,
Florida
THE ISSUE
Entitlement to payment or reimbursement for unauthorized
medical expenses incurred at a private medical facility on
October 7, 2006.
REPRESENTATION
Veteran represented by: National Veterans Organization
of America, Inc.
ATTORNEY FOR THE BOARD
David Traskey, Associate Counsel
INTRODUCTION
The Veteran had active service from January 1991 to March
1996.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from decisions of the Department of
Veterans Affairs Medical Center (VAMC) in Tampa, Florida.
The Veteran requested a hearing before the Board in
connection with this claim. The hearing was subsequently
scheduled for March 2009, but the Veteran failed to report
for the hearing and made no attempt to reschedule the hearing
for a later date. Thus, the Veteran's request for a hearing
is withdrawn. 38 C.F.R. § 20.704(d).
FINDINGS OF FACT
1. The Veteran was treated on October 7, 2006 at the Orlando
Regional Healthcare System - Sand Lake Hospital in Orlando,
Florida.
2. The Veteran's low back pain on October 7, 2006 was not of
such nature that a prudent layperson would have reasonably
expected that delay in seeking immediate medical attention
would have been hazardous to life or health.
CONCLUSION OF LAW
The criteria for payment or reimbursement of unauthorized
medical expenses incurred by the Veteran on October 7, 2006
at the Orlando Regional Healthcare System - Sand Lake
Hospital have not been met. 38 U.S.C.A. §§ 1725, 1728 (West
2002); 38 C.F.R. §§ 17.1000-17.1008 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran contends that pursuant to the Veterans Millennium
Health Care and Benefits Act, he is entitled to payment or
reimbursement for medical care received on October 7, 2006 at
the Orlando Regional Healthcare System - Sand Lake Hospital
(SLH) in Orlando, Florida. See 38 U.S.C.A. § 1725 (West
2002); 38 C.F.R. §§ 17.1000-17.1008 (2008).
According to 38 C.F.R. § 17.1002, payment or reimbursement
for emergency treatment for non-service-connected
disabilities in non-VA facilities is made only if all of the
following criteria are met:
(a) The emergency services were
provided in a hospital emergency
department or similar facility held out
as providing emergency care to the
public;
(b) The claim for payment or
reimbursement for the initial evaluation
and treatment is for a condition of such
nature that a prudent layperson would
have reasonably expected that delay in
seeking immediate medical attention
would have been hazardous to life or
health (this standard would be met if
there was an emergency medical condition
manifesting itself by acute symptoms of
sufficient severity (including severe
pain) that a prudent layperson who
possesses an average knowledge of health
and medicine could reasonably expect the
absence of immediate medical attention
to result in placing the health of the
individual in serious jeopardy, serious
impairment to bodily function, or
serious dysfunction of any bodily organ
or part);
(c) A VA or other Federal
facility/provider was not feasibly
available and an attempt to use them
beforehand would not have been
considered reasonable by a prudent
layperson (as an example, these
conditions would be met by evidence
establishing that the Veteran was
brought to a hospital in an ambulance
and the ambulance personnel determined
that the nearest available appropriate
level of care was at a non-VA medical
center);
(d) The claim for payment or
reimbursement for any medical care
beyond the initial emergency evaluation
and treatment is for a continued medical
emergency of such a nature that the
Veteran could not have been safely
discharged or transferred to a VA or
other Federal facility (the medical
emergency lasts only until the time the
Veteran becomes stabilized);
(e) At the time the emergency treatment
was furnished, the Veteran was enrolled
in the VA health care system and had
received medical services under
authority of 38 U.S.C. chapter 17 within
the 24-month period preceding the
furnishing of such emergency treatment;
(f) The Veteran is financially liable
to the provider of emergency treatment
for that treatment;
(g) The Veteran has no coverage under a
health-plan contract for payment or
reimbursement, in whole or in part, for
the emergency treatment (this condition
cannot be met if the Veteran has
coverage under a health-plan contract
but payment is barred because of a
failure by the Veteran or the provider
to comply with the provisions of that
health-plan contract, e.g., failure to
submit a bill or medical records within
specified time limits, or failure to
exhaust appeals for a denial of
payment);
(h) If the condition for which the
emergency treatment was furnished was
caused by an accident or work-related
injury, the claimant has exhausted
without success all claims and remedies
reasonably available to the Veteran or
provider against a third party for
payment of such treatment; and the
veteran has no contractual or legal
recourse against a third party that
could reasonably be pursued for the
purpose of extinguishing, in whole or in
part, the Veteran's liability to the
provider; and
(i) The Veteran is not eligible for
reimbursement under 38 U.S.C. 1728 for
the emergency treatment provided (38
U.S.C. § 1728 authorizes VA payment or
reimbursement for emergency treatment to
a limited group of veterans, primarily
those who receive emergency treatment
for a service-connected disability).
The Board has reviewed the evidence of record. Regrettably,
the criteria for payment or reimbursement for unauthorized
medical expenses incurred at a private medical facility on
October 7, 2006 are not met.
The Veteran contacted VA on October 7, 2006 and requested
medication for low back pain, numbness, and "shooting" pain
in the legs. The Veteran was notified that he had to
schedule a visit with his primary care provider (PCP) and
sign a "contract" before the medication could be dispensed.
The Veteran indicated his willingness to schedule the
appointment, but expressed concern about his immediate
symptoms.
A telephone triage nurse suggested that the Veteran apply ice
to his back in an effort to alleviate his symptoms. The
Veteran refused, and "con't to be irate and yelling into the
phone." The Veteran also stated at that time that he was
unable to drive to the nearest VA medical facility for
treatment. The triage nurse suggested that the Veteran go to
the nearest medical facility, but explicitly informed the
Veteran that he was "not auth for payment."
The Veteran subsequently presented to the SLH emergency room
on October 7, 2006 complaining of a 14-year history of low
back pain. Upon admission, the Veteran indicated that he had
low back pain with radiating pain down the left leg for a
period of five days. He denied any trauma. The Veteran
further indicated that he ran out of pain medication
approximately five days prior to this episode of care. The
Veteran's past medical history was significant for
osteoarthritis and he stated that magnetic resonance imaging
(MRI) taken two weeks ago showed evidence of a "bulging
disc." Upon physical examination, the examiner described
the Veteran's symptoms as "moderate" and as an exacerbation
of chronic back pain. The impression was backache, not
otherwise specified. A medical bill associated with the
Veteran's duplicate combined health record (CHR) for this
episode of care totaled $749.00.
The claim for payment or reimbursement was denied in February
2007 on the grounds that (1) VA medical facilities were
feasibly available to provide care and (2) care and services
were not rendered in a medical emergency of such nature that
delay would have been hazardous to life or health.
In May 2007, VA conducted a clinical review of the medical
records associated with the Veteran's episode of care on
October 7, 2006. A VA physician indicated that the Veteran
had chronic back pain and wanted "pain pills." However,
the physician also indicated that the Veteran's condition was
non-emergent, and as such, the Veteran "did not meet the
medical review criteria."
The Veteran filed a timely notice of disagreement (NOD) that
same month in which he indicated that he called VA's triage
nurse more than three times as well as left "several"
messages with his PCP and a specialist. According to the
Veteran, his calls were not returned. The Veteran also
stated that he had no transportation and no way to get to the
nearest VA medical facility which was allegedly 71 miles from
his home one-way.
The VAMC issued a statement of the case (SOC) in October 2007
in which it outlined the criteria for payment or
reimbursement of unauthorized medical expenses under the
Veterans Millennium Health Care and Benefits Act. The VAMC
noted that the Veteran's vital signs were normal and that
there were no acute clinical findings or symptoms of distress
at the time of admission to SLH. Furthermore, it was noted
that VA medical facilities were feasibly available and that
the Veteran's care at SLH was not authorized. The Veteran
timely perfected this appeal.
Given the evidence of record, the Board finds that the
preponderance of the evidence is against a finding of payment
or reimbursement for medical care rendered at SLH on October
7, 2006. Emergency room treatment notes associated with this
episode of care described the Veteran's back pain as
"moderate." There is no indication contained in the
duplicate CHR that the Veteran's symptoms were of an emergent
nature. Additionally, the Board notes that the Veteran
sought medical attention for the first time approximately
five days after the onset of the low back pain and after he
ran out of pain medication.
The Board is sympathetic to the Veteran's situation in this
case, particularly to his belief that his symptoms were of an
emergent nature. In particular, the Veteran stated in his
substantive appeal that his back pain was "excruciating"
and that he was "crying and screaming" as a result of his
symptoms. However, such a characterization of the Veteran's
symptoms was not supported by the objective medical evidence
of record. Additionally, the Board finds the February 2007
VAMC decision and the May 2007 clinical review to be highly
probative and competent evidence of whether care and services
were rendered in a medical emergency of such nature that
delay would have been hazardous to life or health. As noted
above, VA medical personnel concluded that the Veteran's back
pain was chronic and non-emergent, particularly where, as
here, his symptoms were present for at least five days before
he sought medical attention.
In light of the Veteran's inability to satisfy the criterion
outlined in 38 C.F.R. § 17.1002(b), the Board finds that any
discussion as to whether a VA medical facility was feasibly
available is unnecessary.
The Board also notes that evidence of record showed that the
Veteran was service-connected for degenerative arthritis of
the spine. See October 2007 SOC. While the VAMC did not
explicitly discuss the application of 38 U.S.C.A. § 1728 in
this case, the Board finds that payment or reimbursement
under those provisions is not warranted as the competent,
probative medical evidence of record showed that the
Veteran's low back condition was non-emergent. See
generally, 38 U.S.C.A. § 1728. While the VAMC did not
provide notice of this statute to the Veteran, the Board
finds that it is not prejudicial to the Veteran for the Board
to address it in the first instance as the criteria
pertaining to emergent care are the same under both statutes.
Thus, the Board finds that payment or reimbursement of
unauthorized medical expenses incurred by the Veteran at the
Orlando Regional Healthcare System - Sand Lake Hospital on
October 7, 2006 is not warranted.
Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist veterans in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
Veteran and his representative, if any, of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Proper notice from VA must inform the Veteran of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
and (3) that the Veteran is expected to provide. This notice
must be provided prior to an initial unfavorable decision on
a claim by the agency of original jurisdiction (AOJ).
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The Board notes that 38 U.S.C.A. § 1725 was amended by The
Veterans' Mental Health and Other Care Improvements Act of
2008. See Pub. L. No. 110-387, § 1725, 122 Stat. 4110 (Oct.
10, 2008). The amendments contained therein are not
applicable in this case and concern payment or reimbursement
for medical care beyond the initial emergency evaluation and
treatment, as well as the safe discharge and/or transfer to a
VA or other Federal facility when necessary.
The Veteran was not provided proper VCAA notice in this case.
However, the Board finds that any notice errors with respect
to the information and evidence needed to substantiate the
Veteran's claim for payment or reimbursement of unauthorized
medical expenses did not affect the essential fairness of the
adjudication. See Overton v. Nicholson, 20 Vet. App. 427,
435 (2006).
The Board notes that VA provided VCAA notice to the Veteran
in June and August 2007 after the initial AOJ decision in
this matter. These notice letters informed the Veteran of
the Veteran's and VA's respective duties for obtaining
evidence. In particular, the Veteran was informed to submit,
or authorize VA to obtain, medical evidence in support of his
claim. Regrettably, however, the Veteran was not provided
with the information and evidence needed to substantiate a
claim for payment or reimbursement of unauthorized medical
expenses.
The Veteran's claim for payment or reimbursement of
unauthorized medical expenses was denied in February 2007.
But, the Veteran was informed in that same decision of the
information and evidence needed to substantiate a claim under
the Veterans Millennium Health Care and Benefits Act. He was
also informed of the reasons for denial and of his procedural
and appellate rights. His claim was readjudicated in May
2007 and he was also provided with a statement of the case
(SOC) in October 2007. The SOC also provided, in complete
detail, all of the information and evidence needed to
substantiate the current claim for payment or reimbursement
of unauthorized medical expenses under the Veterans
Millennium Health Care and Benefits Act.
Based on the notices provided to the Veteran, including the
June and August 2007 notice letters, the VAMC decisions, and
the October 2007 statement of the case, the Board finds that
a reasonable person could be expected to understand what
information and evidence is required to substantiate the
claim. These documents, in conjunction with the VCAA
letters, explained what information and evidence was needed
to substantiate the claim, and a reasonable person would be
expected to understand the information contained therein.
The Board further finds no prejudice to the Veteran because
he did not receive notice pursuant to 38 U.S.C.A. § 1728. As
noted above, emergency treatment, as defined therein, is the
same as the criteria in 38 U.S.C.A. § 1725.
In sum, the Board finds that the presumption of prejudice
with regard to any deficiency in the notice to the Veteran or
the timing of the notice has been rebutted. For the
foregoing reasons, the Board concludes that all reasonable
efforts were made by VA to obtain evidence necessary to
substantiate the Veteran's claim. The Board further finds
that VA has complied, to the extent required, with the duty-
to- assist requirements found at 38 U.S.C.A. § 5103A and 38
C.F.R. § 3.159(c)-(e).
ORDER
Payment or reimbursement of unauthorized medical expenses
incurred by the Veteran on October 7, 2006 at the Orlando
Regional Healthcare System - Sand Lake Hospital is denied.
____________________________________________
S.S. TOTH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs